PROGRESS IN THE COURTS

Editor’s note: Inside Analysis features conversations with the Focus on the Family Action team of issue experts. These analysts update Dr. James C. Dobson, chairman of Focus Action, on political developments threatening the family. The following is an interview with Bruce Hausknecht, J.D., the judicial analyst for Focus on the Family Action.

Sometimes a president’s most lasting legacy comes from the judges he appoints. With just over a year to go in office, how much of an impact has President Bush made in this area?

There’s no doubt that the president will leave a significant mark on the courts. Not only has he appointed two of the finest legal minds ever to serve on the Supreme Court — John Roberts and Samuel Alito — but by the time his term ends in January of 2009, he will have appointed over a third of the 875 judges on the federal courts, all lifetime appointments.

He’s done all that despite unprecedented obstruction tactics by Senate Democrats, including filibusters. And although he now has to deal with an adversarial Senate — and a Judiciary Committee dominated by extreme liberals — the good news is that many new federal judges are already hard at work interpreting the law rather than legislating from the bench.

With seven appointments since 2001, Bush has even made inroads into the ultra-liberal 9th Circuit, home to some of the strangest federal decisions. (Remember the decision finding the Pledge of Allegiance unconstitutional? Or the one denying parents’ right to object to schools giving sex surveys to first-graders? How about a constitutional right to assisted suicide?) The 9th Circuit has been dubbed the “9th Circus” for its dubious decisions and the fact that it’s the most reversed federal circuit. But it’s slowly changing, due to these Bush appointments.

And the number of Bush judges tells only part of the story. The rest of the story is their quality. We’re seeing many judges who hold a judicial philosophy most faithful to the Constitution’s original meaning. That’s a development many of us have worked and prayed on for a long time.

Sum up some of the recent decisions on pro-family concerns. How have the Bush judges’ rulings made a difference?

At the Supreme Court, we saw three favorable abortion-related rulings: Scheidler v. NOW (dismissing a two-decade-old civil suit against abortion protesters); Ayotte v. Planned Parenthood (federal courts should not toss out a problematic abortion law in its entirety if a lesser remedy is available); and, of course, Gonzales v. Carhart (upholding the Federal Partial Birth Abortion Ban Act).

In the area of free speech, we had Federal Election Commission v. Wisconsin Right to Life (allowing issue advertising close to elections, a tremendous help to grassroots activism). And in a victory for faith-based social programs, we had Hein v. Freedom from Religion Foundation (“offended” taxpayers do not have legal “standing” to use the courts to challenge the president’s efforts to publicize his faith-based initiatives).

These cases not only yielded positive results for the specific issues being considered in each, but taken as a whole they predict some very encouraging trends with the present court.

We’ve seen progress in the lower federal courts as well. On the issues of religious liberty and freedom of association, I’m encouraged by last year’s 7th Circuit Court of Appeals decision in Christian Legal Society v. Walker. That decision stood up for Christian clubs on college campuses by striking down a politically correct “nondiscrimination” policy of Southern Illinois University’s School of Law — which, incredibly enough, had been used to justify the denial of official school recognition to a Christian club that required its members to subscribe to Christian beliefs and code of conduct.  Many state-run colleges and universities around the country try to impose similar restrictions on Christian clubs, so this decision is of major importance.

What are some of the hot issues you see coming in the courts?

Religious liberty will continue to be a hot issue until the Supreme Court can make some sense of, or simply reform, its own previous case law. The damage done by the judicially created “wall of separation” since the 1940s is still with us. The Pledge of Allegiance “under God” case has not gone away; after the Supreme Court threw out Michael Newdow’s original case on technical grounds a couple years ago, he re-filed it in California and it is slowly working its way up to the 9th Circuit, along with his challenge to the national motto, “In God We Trust.” There are at least two federal cases pending involving a government denial of space to churches to conduct worship services.

I also see an inevitable collision in the Supreme Court between the advancing homosexual agenda and religious liberty, as more and more “nondiscrimination” laws are in tension with the right of Christians and Christian-owned businesses to stand and speak out for righteousness.

So-called “hate crimes” laws that are being proposed or amended to include “perceived sexual orientation and gender identity” are also frightening in their implications for Christians, based on experience with similar laws in countries like Sweden and Canada, where merely preaching or publishing Bible verses on homosexuality can (depending on the country) subject you to fines, “re-education” or jail time. Even in this country, we’ve seen state hate-crimes laws used to arrest Christians attempting to witness at a “gay pride” event in Philadelphia, or a Madison, Wis., man attempting to share the Gospel with someone at a car wash. 

Sooner or later the Supreme Court likely will have to weigh in on laws like these. The issues they raise are too fundamental to ignore.

What do you think is the clearest lesson we can draw from what’s happened to courts in the Bush years?

In a few words: Elections do matter. It’s through judges appointed and confirmed by elected officials that we get a judiciary that leaves the lawmaking to the legislative branch, and ensures that laws are properly interpreted in light of the original understanding of the Constitution. And it’s through elections that we can get officials who work to protect the family and religious liberty.